Welcome to the Online Archive of the Old PublicEye.Org Website

Please remember that this is an archive of an older website for researchers, and it is not being updated. Therefore, much of the material here is not current.
Much like any library archive, it is "out-of-date." Brick and mortar libraries do not toss out older resource materials, they archive them. That is what we have done here.

The Hunt for Red Menace: - 9

Warning Flags

The increased use of computers by local police departments in each state
with direct access to telecommunications systems was also a matter of
concern. "This could easily become a nationwide computerized network
used to collect and compare information in both the FBI and other computerized
law enforcement files," said Sheila O'Donnell, co-founder of the
Public Eye magazine. "Agencies at all levels of government can now
be tied into a nationwide intelligence network of dossiers on political
dissidents and, in fact, on every American citizen." O'Donnell and
others feared the development of two parallel computerized political
intelligence networks -one public, one private -that could share information
about political activists and have direct access to modern data banks
as well as to the files compiled during the McCarthy period.

"We fear there will soon be a complete integration of the public
and private political intelligence apparatus," warned attorney Matthew
J. Piers, in 1982. Piers, the former chairman of the National Lawyers
Guild Civil Liberties Committee, went on to predict "This network
will then be unleased first against persons accused of having ties to
unpopular foreign govenments or affiliated with alleged terrorist groups.
But inevitably the public-private network will move on to investigate
and disrupt the activities of a wide range of community, labor and political
activists.

Piers could not have known at the time he spoke that the FBI was already
cooperating with private right-wing groups to launch an investigation
of the anti-interventionist group CISPES. One justification used by the
FBI was a right-wing analysis that characterised CISPES as a terrorist
group supporting foreign revolutionaries.

A Classic Case of Ultra-Right Information
Manipulation

One classic incident of private sector political spying involves two
right-wing intelligence networks who spied on anti-nuclear activists
planning for the 1977 nonviolent sit-in at Seabrook nuclear power plant
building site in New Hampshire.

The pro-nuclear U.S. Labor party (USLP), a right-wing cult group headed
by perennial presidential candidate Lyndon laRouche, maintains an intelligence
gathering outfit that has an international Telex system tied to a computerized
dossier filing system of activists, especially those working against
nuclear power. Members of the LaRouche/USLP spy group routinely pass
along their hysterical and inaccurate "intelligence" to local,
state and federal police agencies.

One month before the Clamshell Alliance staged its massive Seabrook
occupation, LaRouche's spies met with New Hampshire State Police agents,
and warned them the demonstration was a cover for a terrorist attack.
Among the documents provided to the police was material from Information
Digest, a right-wing blacklist newsletter produced by aides and consultants
to the late Rep. Larry McDonald (D-GA), a John Birch Society member who
often blasted progressive groups in the Congressional Record. These USLP-supplied
documents were apparently the basis for then-New Hampshire Governor Thompson's
statements that the Seabrook Demonstration was being planned by "terrorists." In
the New Hampshire Police's summary of the USLP material, the Labor Party
representatives are repeatedly described as "well- informed" and
the police investigators give total credence to the charges that the
proposed demonstration was "nothing but a cover for terrorist activity." The
Seabrook demonstration included non-violent civil disobedience, but no
acts of violence on the part of the demonstrators.

The incident is classic for several reasons: · The information
collected by the private spies was passed along to a public police agency
which then took the unverified information and reported it to an elected
official who made decisions and public statements based on the "intelligence." · The
intelligence was collected from several different private sources before
being passed to the public sector. · The purpose of the intelligence
was to discredit the legitimate organizing activities of a group dedicated
to non- violence by publicly labeling them as "terrorists." · The
information itself was inaccurate and grossly distorted by the paranoid
conspiracy theory views and extreme right-wing ideology of the private
sector intelligence gathers.

NLG & Redbaiting Redux

In the late 1970's the National Lawyers Guild discovered that thousands
of pages of FBI files on the NLG and its members remained carefully indexed
and neatly filed in numerical order for fast retrieval. Many of the FBI
reports were inaccurate, inflated by ambitious agents, or illegally obtained,
yet in late 1979 the FBI provided files to Senator Strom Thurmond who
was seeking to block federal judgeship for a former National Lawyers
Guild activist. <$F This section was originally researched in cooperation
with Nancy Katz for the National Lawyers Guild lawsuit against the FBI.>

In August of 1979, Thurmond asked the FBI for material on the Guild
detailing "the total Communist influence," on the Guild and "any
known actions that would reflect on the NLG's opposition to our Democratic
form of government." Thurmond wanted "special emphasis placed
on the Executive Board of the Detroit, Michigan Chapter for the period
1960-1965." That was when Anna Diggs Taylor, the federal judge nominee,
was active in the Detroit NLG Chapter leadership.

FBI director William Webster sent Thurmond "excised copies of FBI
reports" on the Detroit Guild, but limited the material to information "previously
released to the plaintiff's" in the NLG lawsuit against the FBI.
An FBI memo noted the material was provided to the Senate Committee on
the Judiciary when "Senators Thurmond and Kennedy both desired this
information...for a Committee hearing". Thurmond failed to attend
the hearing, but Kennedy asked Taylor to respond to charges made "in
the past" that the NLG had "communist connections."

"Preventing this type of use of the FBI information is one aspect
of the Guild's lawsuit against the FBI," said Attorney Michael Krinsky
of Rabinowitz, Boudin, Standard, Krinsky & Lieberman, the law firm
handling the Guild lawsuit sponsored by the National Emergency Civil
Liberties Committee. Krinsky's co- counsel, Gordon Johnson, points out
that many of the FBI records on the Guild were gathered by "massive
informant infiltration, wiretaps, trash covers, and burglaries; and yet
these misleading and illegally-gathered records have the capacity to
be used against the NLG and others to recycle the smear." Krinsky
and Johnson charge that much of the FBI-collected information was not
related to any law enforcement purpose, but was amassed to be used by
the FBI and Congressional Witch Hunters to discredit and destroy progressive
organizations.

Much of the FBI's information was originally gathered to provide fuel
for the first round of Witch Hunts, yet it is still intact, and apparently
available to Congressional committees. "It is not proper to draw
on the FBI's vast body of illegally gathered political intelligence," insists
Krinsky. "The government has no right to have membership lists or
financial records from the Guild nor information on political positions
taken by Guild members. This is simply none of the business of government," Krinsky
said.

Over the years there have been scores of articles in the conservative & reactionary
press which Red Baiting the NLG. NLG president Debra Evenson, a law professor
at DePaul University in Chicago, said "the National Lawyers Guild
has learned to expect red-baiting over the years, and we are discussing
ways to confront it." One survey conducted by the NLG showed that
older members as well as law students are fearful of professional repercussions
should their membership become widely known. "Martin Luther King,
himself a target of similar anti-communist attacks, talked about this
deep `malady' that afflicts the American spirit," said Evenson who
sees a need for a broader coalition to, "address the pathological
anti-communism that has lead our country into its present situation in
which a presidential candidate has tried to label even `liberals' as
being outside the `mainstream'."

In a democracy based on informed consent and the free interplay of ideas,
the criticism of an idea based on labelling and smears serves to limit
debate and establish narrow parameters to discussion. Yet the right-wing
Red Baiters serve not only to de-legitimize progressive politics through
smears, but through conspiratorial subversion-mongering, also provide
a convenient justification for putative criminal probes by government
agencies such as the FBI. This is in part what happened with the FBI
probe of CISPES.

Revelations Breed Reform

With the revelations of government surveillance abuse that emerged during
the 1970's came a series of lawsuits across the country. While many of
these cases dragged on into the 1980's the vast bulk of the factual evidence
of government misconduct was publicized during the 1970's and resulted
in a series of partial and in some instances short-lived reforms. Since
it was the public debate created by the information emerging from the
lawsuits, their findings and results will be discussed here, even though
the legal proceedings sometimes stretched into the 1980's and the Reagan
years.

The Socialist Workers Party Case

Perhaps the most significant lawsuit against government misconduct was
the thirteen-year-long legal battle between the Socialist Workers Party
and various government law enforcement and intelligence agencies which
conducted surveillance and harrassment of the group. The case ended with
damage awards of over $250,000 to the SWP.<$F The damages awarded
were based on a claim under the Federal Torts Claim Act (FTCA), 28 U.S.C.
SS 1346(b). The bulk of the SWP's claims, calling for declaratory and
injunctive relief and damages under other federal statutes and the Constitution,
were dismissed by the court. When the suit was filed in 1973 the damage
claim was $26 million and no claims were made under the FTCA. In 1976,
an amended complaint raised the damage claim to $40 million and added
for the first time FTCA claims based on evidence produced during discovery
and information circulated in the media. Based on further evidence revealed
during the trial, the SWP's damage claims were eventually increased to
$70 million. The suit was originally a class action but a stipulation
and order on September 9, 1974 dropped the class action aspect. Remaining
plaintiffs at that point consisted of several named individuals and the
two named organizations. Damage claims were also wittled down before
trial. A pre-trial plaintiff brief argued the government was liable for
damages "under the FTCA according to several alternative theories.
These include liability under the state law of trespass, conversion,
prima facie tort, and intentional interference with economic relations,
as well as liability under federal statutes, 42 U.S.C. SS 1983 and 1985
(3), and 18 U.S.C. S 2520, and under the First and Fourth Amendments." The
FTCA claim was the only one to survive at the commencement of trial.
Individual incidents of surreptitious entry, infiltration, and disruption
by government agents were ruled to be be tortious under applicable state
laws. Damages were tallied at a frugal rate for each incident to arrive
at the total damage award of $264,000. Damages sought for electronic
surveillance were dismissed on procedural grounds. All individual plaintiff
claims were dismissed.>

The case began on July 18, 1973 when the Socialist Workers Party (SWP),
its youth arm, the Young Socialist Alliance (YSA), and several members
of the Trotskyist political organization filed suit against the United
States Government and various officials seeking a judicial declaration
that the government had violated its rights, an injunction against continued
harassment, and damages for the harm caused by the government's wrongdoing.
The case was filed in U.S. District Court for the Southern District of
New York before Judge Thomas P. Griesa.<$F District Court: 387 F.
Supp. 747 (1974); 458 F. Supp. 895 (1978); 458 F. Supp. 923 (1978); 463
F. Supp. 515 (1978). Court of Appeals: 510 F.2d 253 (1974); 565 F.2d
19 (1977); 596 F.2d 58 (1979). Supreme Court: 419 U.S. 1314 (1974) (denial
of stay); 436 U.S. 962 (1978) (cert. denied); 444 U.S. 903 (1979) (cert.
denied).>

The SWP claimed the government had targeted the organization and its
members with a campaign of infiltration, disruption and harassment in
violation of their legal rights. The SWP also challenged the government's
characterisation of the group as a threat to national security. The impetus
for the original complaint was a series of specific incidents involving
what the SWP characterised as illegal and unconstitutional harassment
of their members by government officials.

The SWP immediately launched an aggresive media and organizing campaign
as an adjunct to its legal battle. They said they wanted to "put
the government on trial" for its harrassment of all dissidents and
civil rights activists, and noted with irony that Judge Griesa's chambers
were in the same federal court house where the Rosenbergs were sentenced
to death after having been convicted as "atomic spies" in a
well-known case that is still controversial and debated today.

"In our suit we are demanding an end to government investi- gation
and harassment based solely on our political ideas and activities. If
we win a favorable ruling, it will strike a blow at the entire political
police setup," said Larry Seigle, a spokesperson for the SWP. This
high visibility political stance - and the request by the SWP that the
court rule on whether or not they were "subversives" and thus
constituted a real threat to national security - were hotly debated among
attorneys in the civil liberties field.

The case was among the first filed attacking the government's use of
informants and charging an illegal pattern of disruption and invasion
of privacy carried out by government agents operating under the cloak
of legitimate investigative powers. Ironically, several other cases raising
similar issues, and which were filed after the SWP action, were concluded
prior to the handing down of the decision in the SWP case. In several
of those cases, intelligence agency and law enforcement agency practices
of warrantless wiretaps, burglaries and continuing surveillance, and
dossier compiling absent any credible evidence of criminal conduct, have
been found to be impermissable.

The FBI Investigation of the SWP

The court spent forty pages reviewing the 35 year FBI investigation
of the SWP, and there was little factual dispute over what the FBI had
actually done to the SWP in the course of its investigation.

The FBI was already watching the SWP when in 1941 eighteen SWP leaders
were prosecuted by the Federal Government for violation of the Smith
Act.<$F 18 U.S.C. S/ 2385.> They were charged with advocating the
violent overthrow of the Government in specific speeches, and were convicted
in December 1941. The convictions in what was called the Dunne Case were
upheld on appeal.<$F Dunne v. United States, 138 F.2d 137 (8th Cir.
1943), cert. denied, 320 U.S. 790 (1944).> Following the convictions
in the Dunne case, the scope of the FBI investigation of the SWP broadened.

The court noted that "FBI investigations are classified as either
criminal investigations or national security investigations," and
according to the court, the FBI investigation of the SWP "from the
early 1950's onwards [was] a national security investigation." The
FBI investigation of the SWP continued until Attorney General Levi terminated
the investigation on September 9, 1976.

The court noted that to some extent the FBI investigation of the SWP "involved
the use of publicly available information. For example, the FBI analyzed
publications of the SWP and observed events open to the public. The court
found, however, that the FBI engaged in activites of a more intrusive
nature, especially through the use of informants, disruption, electronic
surveillance, and surreptitious entries or "Bag Jobs."

The Department of Justice and the FBI also kept track of the SWP through
two programs, the Security Index/ADEX program which was a list of persons
targeted for possible detention in time of national emergency, and the
Loyalty-security Program which involved security checks on government
employees.

Informants

As the following abridged charts from the court ruling indicate, the
FBI use of informants in the SWP/YSA was far from casual.

SWPYSA

YearInf.YearInf.

19605219609

197328197377

197619197641

Since the SWP and the YSA have relatively few members, these informants
comprised a small yet significant percentage of the membership.

Year % and # of members who were FBI

SWPYSA

196011%(52/466)8%(9/115)

1973 3%(28/1095)6%(77/1256)

1976 2%(19/1000)3%(41/1185)

The court took a dim view of this level of infiltration given the lack
of evidence of criminal activity by the SWP.

"Presumably the principal purpose of an FBI informant in a domestic
security investigation would be to gather information about planned or
actual espionage, violence, terrorism or other illegal activities designed
to subvert the governmental structure of the United States.

"In the case of the SWP, however, there is no evidence that any
FBI informant ever reported an instance of planned or actual espionage,
violence, terrorism or efforts to subvert the governmental structure
of the United States. Over the course of approximately 30 years, there
is no indication that any infor- mant ever observed any violation of
federal law or gave infor- mation leading to a single arrest for any
federal law violation." The court did note somewhat sarcastically
the one positive effect of the use of FBI informants - it provided the
court with a detailed record "recording peaceful, lawful activity
by the SWP and YSA."

The court found that "one use of informants was to gain information
useful to the FBI in its program to disrupt the SWP," and that the
FBI "encouraged the member informants to frustrate the growth" of
the SWP and YSA.

Disruption

"It is obvious that the United States engages in counterintelligence
activities designed to disrupt the intelligence gathering conducted by
other countries, Not so obvious is the fact that these counterintelligence
and disruption activities have at times been directed against domestic
organizations," observed the court.

The court looked at both covert disruption programs under the FBI COINTELPRO
program, and the use of interviews and interrogations as a disruptive
technique.

The FBI COINTELPRO program, against the SWP and other dissident groups,
is well documented in the media, congressional hearings, and court cases.
There is no need to review the twenty pages of findings in this case
other than to note the court isolated 21 specific harmful disruptive
incidents staged by the FBI against the SWP. The issue of using seemingly-legitimate
interviews as a disruptive technique is of more interest to the current
litigator. Here is the court's analysis:

=== "A frequent, and usually quite legitimate, activity of the
FBI is to conduct interviews and interrogations. However, in the case
of the SWP, such activities often had a purPose other than information
gathering. The FBI had a practice of questioning members and prospective
members of the SWP, as well as their relatives, landlords and employers.
An FBI memorandum of September 1970, relating to the so-called New
Left, stated that such interviews could 'enhance the paranoia in these
circles and will further serve to get the point across there is an
FBI agent behind every mailbox'.

Electronic Surveillance

The court found that the FBI's use of electronic surveillance in its
investigation of the SWP involved both wiretaps on telephone lines and
microphone "bugs" installed in rooms.

=== "During the years 1943-1965, when these operations were taking
place, the FBI had wiretaps in place for a total of about 20,000 wiretap-days,
and bugs in place for about 12,000 bug-days. Almost all of this occurred
between 1943 and the early 1950's. There was no wiretapping at all
after 1954. === "In 1978 Congress passed the Foreign Intelligence
Surveillance Act, 92 Stat. 1783, which provided for a court composed
of federal judges to rule on applications for warrants in foreign national
security investigations. No legislation was passed then, or has been
passed since, regarding electronic surveillance in domestic national
security investigations. The Department of Justice and the FBI now
believe that they have no authority to conduct electronic surveillance
in domestic national security cases, and they do not do so.

Surreptitious Entries - Black Bag Jobs

The court found the FBI made at least 204 surreptitious entries of SWP
and YSA offices and at least four entries into the homes of SWP members.
These entries netted some 9,864 documents that were removed or photographed.

Security Index/ADEX

The FBI for many years maintained lists of persons to be considered
for detention in the event of a war involving the United States.

The court found that as of 1950 "at least 308 SWP members were
listed in the Security Index," and the evidence indicated the FBI
intended to include every member they could identify.

The court was not interested in these lists per se, especially
since the FBI insists they have been discontinued. What caught the attention
of the court was the effect inclusion on these lists had on the listee.

=== "Inclusion in the Security Index had its consequences. An
FBI agent testified at the trial that the FBI verified the residence
and employment of SWP and YSA members every 45 days by interviewing
landlords and employers for the purpose of keeping the Security Index
up to date.

The court recalled the FBI memorandum of September 1970 which the court
felt showed that the FBI intended that interviews with persons such as
employers would "enhance the paranoia" of the "leftist
subjects" of the interviews. "It can be safely inferred that
the FBI intended, or at least knew, that interviews every 45 days with
landlords and employers of SWP and YSA members in connection with the
Security Index would create difficulties for these members."

Government Resistance to Disclosing Evidence

In may of 1976 "lengthy conferences were held to attempt to organize
the remaining discovery problems which were complex. A list of eleven
alleged illegal activities was arrived at which were agreed to constitute
the basic types of illegal activities claimed by the plaintiffs" to
have been engaged in by the government and its agents.<$F Court's
partial granting of plaintiff motion to cite Attorney General for civil
contempt dated June 30, 1978).>

The list was as follows:<$F Minutes May 14, 1976 pp. 75, 84-85)>

1. Break-ins and unauthorized seizure or retention of property.

2. Electronic Surveillance.

3. Consensual monitoring by recording devices.

4. Use of informants.

5. Physical surveillance.

6. Undercover surveillance.

7. Mail covers.

8. Mail intercepts.

9. Interviews by FBI agents of organization members and third persons.

10. COINTELPRO or disruption program.

11. Placing plaintiff organizations and their members on lists of security
risks.

The discovery period was repeatedly stalled over a period of over five
years due to several factors. According to Judge Griesa's ruling, the
discovery period was complicated and lengthened by the time it took for
the government to produce selective samples from the "enormous" number
of pages of files on the plaintiffs held by government agencies; and "difficult
claims of governmental secrecy, requiring two interlocutory appellate
proceedings."

A major side issue in pre-trial discovery was the court's startling
contempt citation against the Attorney General of the United States for
failure to comply with a document production order. On June 30, 1978,
after side litigation had traveled to the Supreme Court and back, Judge
Griesa gave then Attorney General Griffin Bell one week to produce a
selected group of FBI informant files, threatening to grant a plaintiff
motion to have Bell cited for contempt under Fed. R. Civ. P. 37(b)(2)(D).

Bell refused to produce all of the requested informant files and was
in fact cited by Griesa for contempt, a citation later vacated by the
Court of Appeals which suggested a less drastic resolution of the impasse.
To unravel the informant issue, Judge Griesa appointed a special master,
Charles D. Breitel, to review the specific controversial informant files
in detail, and prepare a summary of the overall use of informants against
the plaintiffs by the FBI. Breitel was the former Chief Judge of the
New York Court of Appeals.

The 89-page "Breitel" special master's report was issued on
February 4, 1980 and showed the use of some 300 member informants in
both the SWP and YSA between 1960 and 1976 and another 1,000 non-member
informants.

The Trial

The original 1973 complaint by the SWP named as defendants various heads
of federal agencies and departments as well as certain named individuals.
The United States was not named as a defendant in the original complaint.
A number of defendants were dismissed in the course of pre-trial agreements
and rulings, and at the time of trial, the list of defendants included
no named individuals.

Defendants at trial were:

Attorney General of the United States, Secretary of the Treasury, Secretary
of Defense, Postmaster General, Secretary of the Army, Director of the
Federal Bureau of Investigation, Director of Central Intelligence, Director
of the Secret Service, Director of the Defense Intelligence Agency ,
Civil Service Commissioners, President of the United States, Commissioner
of the Immigration and Naturalization Service, Secretary of State, United
States of America.

Plaintiffs at trial were the Socialist Workers Party, the Young Socialist
Alliance, and 10 named individuals active with the two named organizations.

The trial opened on April 2, 1981 shortly after President Ronald Reagan
pardoned FBI agents W. Mark Felt and Edward S. Miller who had been convicted
of burglarizing the homes and offices of dissidents.

The SWP case was heard without a jury and produced 200,000 pages of
government documents and 8,000 pages of testimony during the 54 day trial.

At the trial the FBI claimed it possessed secret evidence showing that
SWP leaders were involved in illegal activities. However, the FBI declined
to introduce the material, asserting that to do so would endanger the "national
security."

A substantial amount of testimony was given explaining the nature, activities
and goals of the socialist group. The SWP made their political views
a central component of their complaint and trial strategy, charging that
the government label of "subversive" was not sufficient grounds
for 45 years of investigation. According to one SWP spokesperson, "Their
case boils down to the fact that if you are an SWP member, a Marxist,
a Leninist, that's enough grounds to investigate. We are asking just
what does 'subversive' mean?"

At trial Judge Griesa took that issue seriously, and encouraged SWP
witnesses to elaborate in great detail on their interpretation of Marxist
ideology. Griesa, according to published reports, was impatient with
the simplistic level of the government's analysis of Marxism and revolutionary
ideology. Griesa several times chided government defense attorneys when
they persisted in reading to plaintiff witnesses from SWP literature
and ominously repeating phrases such as "class struggle," "Leninism," and "the
masses." In one instance Judge Griesa impatiently told a U.S. attorney, "Don't
have a pre- arranged script that you follow, I don't see any reason in
reading him a lot of things that are consistent with what he said."

The trial ended June 25, 1981.

Post Trial Issues and Claims

On September 14, 1981, attorneys for the Socialist Workers Party and
Young Socialist Alliance filed a 545-page post-trial brief asking for
a permanent injunction barring the FBI, CIA, Immigration and Naturalization
Service and other government agencies from spying on and disrupting the
socialist organizations. In addition, the brief raised the damage claim
to $70 million for the 40 year-long "investigation" of its
activities and members.

The book-length brief raised important constitutional issues. The brief
observed that "a legal challenge to an investigation of this character,
against political organizations whose only 'crime' has been that of revolutionary
advocacy, has never before come to trial."

The plaintiffs asked the court to rule the government's investigation
unconstitutional, stating: "The investigation led to no criminal
prosecution with the solitary exception of the convictions forty years
ago under provisions of the Smith Act proscribing certain speech, and
uncovered no evidence that would warrant prosecution."<$F The
SWP also sought several other rulings in the brief, including a ruling
that the government's use of informants in political groups was in and
of itself unconstitutional; a permanent injunction which would prevent
further spying on the SWP; a ruling that the Voorhis Act, which attempts
to limit the right of Americans to associate with socialists in foreign
countries be declared unconstitutional; the overturning as unconstituional
various sections of the Immigration and Nationality Act which plaintiffs
held discriminates against foreign-born people on the basis of their
holding what the government deems to be subversive radical political
ideas. (McCarran-Walter Act, see especially USC Title 8, S 1101, 1182,
1251.)>

Another important question discussed in the plaintiffs brief was the
government's claim that it has unrestricted powers in areas that the
President claims involve "national security."

The brief stated, "It is not within the President's constitutionally
enumerated powers to conduct 'national security' investigations of United
States political groups, where there is no reasonable ground to believe
that such groups are planning or engaging in criminal activity." It
continues, "If, as the government contends, the Executive has unlimited
discretion to decide 'how to investigate,' then such techniques as COINTELPRO,
which were used against the plaintiff in this case, may be used at the
discretion of the President, or lesser officials. The implications of
such a position for the rights of all Americans are far-reaching indeed."

The government never disputed that it conducted an intelligence gathering
campaign against the Socialist Workers Party, but claimed it was a "legitmate
good-faith investigation for both criminal and intelligence purposes." The
FBI also asserted the investigations were proper because "the FBI
has been authorized, since the days of President Roosevelt, to conduct
intelligence-gathering activities in this country."

As the government noted in a pre-trial brief, "The issue in this
case is not whether the SWP, the YSA or any of their members can be proven
guilty of a crime beyond a reasonable doubt. The issue is whether the
government has a right to keep itself informed on the activities of groups
that openly advocate revolutionary change in the structure of the government,
even if such advocacy might be withing the letter of the law." <$F
The government opposed declaratory and injunctive relief against any
future investigations of the socialist groups because many of the FBI
practices complained of by the SWP had ceased; and that new FBI guidelines
had tightened up instances in which domestic security investigations
can be implemented.>

Are Revolutionaries Criminal Subversives?

After an exhaustive review by the court of the ideology of the SWP and
the history of Marxism, Leninism, and Trotskyism, the court brushed aside
the SWP's contentions that their political line did not ultimately call
for the violent overthrow of the democratic government.

=== "The SWP is dedicated to the doctrines of Karl Marx, V. I.
Lenin and Leon Trotsky. A major issue in the present case is whether
the FBI and certain other agencies of the Federal Government could
reasonably believe that the SWP presented a threat of revolutionary
or subversive activity against the governmental structure of the United
States so that certain investigative techniques and other measures
vis-&-vis these organizations and their members were justified.

The court's opinion includes almost twenty pages of an extensive historical
account of the develpoment of worldwide Trotskyism. Particular attention
was paid to the convening of what for all intents and purposes was the
Trotskyist tendency's world congress, called the Fourth International,
and the SWP's association with the Fourth International.

The court gave the following reasons for its attention to the relationship
between the SWP and the Fourth International:

=== "In 1940 Congress passed the Voorhis Act, 18 U.S.C.; 2386.
This statute Provides that an organization 'subject to foreign control
which engages in political activity' must register with the Attorney
General and must submit a considerable amount of information. === "According
to the statute, an organization is 'subject to foreign control' if
it is affiliated directly or indirectly with a foreign government or "an
international political organization.' In order to avoid registration
under the Voorhis Act, the SWP withdrew as a formal member of the Fourth
International. However, the SWP continued to participate in Fourth
International activities as a 'consultative member' or 'sympathizing
section.' The evidence shows that this change made almost no practical
difference. The SWP remained an important factor and a very active
participant in the Fourth International. === "It should be noted
that the United States Government has been fully aware of this, and
has taken no steps to enforce the Voorhis Act against the SWP.

The court noted it was reviewing these matter not to make "some
ultimate historical judgment, but the determination of whether the FBI
and other organs of our Government could reasonably believe that the
SWP has a revolutionary ideology whose goal is the violent overthrow
of our democratic processes and form of government."

As to that latter point, the court court found as follows:

=== "It would be reasonable for our Government to take the view
that Lenin and Trotsky installed a totalitarian government in the Soviet
Union not because the civil war of 1918 blighted a budding Leninist/Trotskyist
democracy, but because the fundamental beliefs and policies of Lenin
and Trotsky denied democracy and advocated totalitarian rule imposed
by military force and terror. === "The FBI and other organs of
our Government need not blind themselves to the historical record of
the Trotskyist movement's founder in considering the nature of that
movement and its ultimate goals. However, it must also be recognized
that the situation of Trotskyist Parties in the world today is vastly
dif- ferent from the situation of the Bolsheviks in the Russia of 1917-18.
The Bolsheviks, although a minority. had the ability to seize power
and form a government. Since that time other communist governments
have come to power, and have followed the grim pattern of abrogating
freedom and democratic processes (and, it must be said, not for 1 or
2% of the population, but for almost everyone except the governing
elite).

The court, however, gave importance to the fact that "nowhere in
the world is there a Government established by a Trotskyist party. Nowhere
in the world, and certainly not in the United States, is there a Trotskyist
party which even approaches having the ability to seize power."

Because of this circumstance, the court found that "the question
of what kind of society a Trotskyist party such as the SWP wishes to
create is currently one of belief not of practice."

Does the SWP Espouse or Practice Violence?

Moving on to the specific question of violence, the court noted that
even tiny political parties are capable of violence or terrorism and
thus could pose a threat to ordered society. Considerable evidence was
presented at trial on the issue of whether or not the SWP either espouse
or practices violence.

This question is of great significance to persons concerned with civil
liberties. The following excerpts from the court's ruling offer a yardstick
for measuring when revolutionary politics and actions may begin to erode
Constitutional protections.

=== "At the trial of this action the SWP took the following position,
as elaborated in the testimony of the SWP leaders. The SWP is in favor
of revolution, but this simply means a transformation of society such
as the Industrial Revolution. The revolution comes about through a
historical process, and takes place when the capitalist system has
exhausted itself. The revolution cannot be brought about by a putsch
or coup, or the action of a minority, but only by the majority-broad
mass action. The SWP believes in using the electoral process in this
country to have the workers gain control of the government, and then
amending the Constitution to carry out the nationalization of property
required by their economic program. === "A most important part
of the doctrinal presentation at the trial was the concept that the
SWP would not take the initiative in using violence, but that undoubtedly
the capitalist class would use violence to prevent change - i.e.,
would not allow the democratic process to run its course. The workers
would then resort to armed force to defend themselves. === "Aside
from the question of whether the SWP advocates violent revolution is
the related but somewhat different question of whether the SWP advocates
individual acts of terrorism outside of the context of mass revolution. === "As
to the first point - the [SWP's] alleged belief in peaceful revolution
of the Industrial Revolution type - one would be naive indeed to accept
this as the doctrine of Marx/Lenin/Trotsky. === "In the first
place, there is no doubt about the fact that Lenin advocated violent
revolution.

The replacement of the bourgeois by the proletarian state is impossible
without a violent revolution . . . .

Lenin. The State and Revolution. quoted in Handbook of Marxism p. 739.

=== "It is apparent that the SWP has not deserted the theory
and example of Lenin and Trotsky favoring ultimate violent revolution.
A broad survey of the writings of SWP leaders reveals without question
that they look to the violent revolution of the Bolsheviks in Russia
as a model, and that they contemplate the "capitalist classes" as
an enemy, against which they would revolt, if they had the power. Of
course, they do not have the power to carry out such a revolution. === "This
brings us to the question of whether the SWP advocates terrorism as
a kind of substitute for actual revolution or as an interim step leading
to such a revolution. === "At the trial, the SWP leaders testified
that terrorism is totally contrary to the doctrine of their party,
since it distracts attention and efforts from the development of a
mass movement, and also subiects the militants to police action and
loss of life, The evidence supports the view that Trotsky was opposed
to terrorism and that the SWP accepts and follows this teaching. An
article on the subject by Trotsky appears in a pamphlet entitled 'Leon
Trotsky Against Individual Terrorism'," which is distributed bv
the SWP to its members. === "The SWP, in accordance with Leninist/Trotskyist
doctrine and historical example, must be considered to embrace violent
revolution as an ultimate goal. However, the SWP realizes that it has
no power under current circumstances to carry out such a revolution.
The SWP will use the available devices, such as elections, to accomplish
what it can towards spreading its theories and transforming society. === "On
the other hand, the devotion to ultimate revolution does mean that
the SWP has an ideology which is basically antithetical to the political
system and democratic processes of this country. This is epitomized
by the statement of [SWP ideologue] James Cannon, quoted earlier, that
'we exploit the cracks and crevices in the bourgeois-democratic system
without paying the slightest respect to it.' === "As to the question
of terrorism, as distinct from ultimate revolution, the SWP and its
leaders have consistently taken strong positions opposing terrorism,
citing Trotsky's condemnation of this type of activity. For a time,
as described, a minority in the SWP subscribed to the Fourth International
espousal of guerilla warfare in Latin America, but this minority group
was expelled from the SWP. === "As to whether the SWP practices
violence, the evidence in this action compels a finding that it does
not. The FBI con-ducted an intensive investigation of the SWP for over
30 years. There was not one single prosecution of any member of the
SWP or YSA for any terrorist or revolutionary act of any kind. No evidence
was introduced at the trial that any SWP or YSA member ever carried
on any such activities. === "It is of interest to contrast this
record with that of other groups which have committed numerous acts
of violence and destruction in recent times in the United States, particularly
during the late 1960's and early 1970's. Despite some occasional inflammatory
rhetoric, there is no evidence that the SWP, the YSA or their members
were involved in any such acts. === "The evidence does show in
considerable detail the nature of the [SWP's] actual, lawful activities
over the years. One type of activity, which occupied a great amount
of time and effort in the various meetings and assemblies of the SWP,
was discussion and debate on various aspects of Marxist theory. This
included Marxist economic and social theory, the Marxist view of history,
particularly as applied to contemporary events, and other theoretical
and doctrinal points. === "The SWP also devoted great time and
effort to discussing various causes outside the strict confines of
its own party concerns, such as opposition to the Vietnam War, and
support for agricultural workers in California and for the civil rights
movement. The SWP sought to ally itself with various groups promoting
these causes and to participate in related Rublic events. Also, the
SWP devoted considerable effort to internal matters such as personnel,
organization and fund raising. === "All of the above are unquestionably
lawful political activities, which a group such as the SWP has a clear
constitutional right to carry out. See Brown v. Socialist Workers '74
Campaign Committee. 459 U.S. 87, 88 (1982)."

----------------

BOX!

The Judge's Rulings

Issues

The following summary of the issues which remained after the trial and
the post-trial briefing<$FPost trial briefing extended into the spring
of 1983.> is taken from the court's ruling:

"The bulk of the evidence at the trial and the discussion the in
the briefs related to plaintiffs' allegations of wrongdoing by the FBI
and the Department of Justice. Plaintiffs' principal complaints are about
four types of FBI activity - disruption, surreptitious entries or burglaries,
use of informants, and electronic surveillance (telephone wiretaps and "bugs" in
offices and dwellings).

Plaintiffs also complain about two programs implemented by the Department
of Justice and the FBI, the Security Index/ADEX program and the loyalty-security
program for federal employees. In connection with the second program,
the SWP was included in the so-called Attorney General's list (now terminated)
as a subversive organization.

Damage claims are asserted by the SWP and YSA and also by four of the
individual plaintiffs, Evelyn Sell, Morris Starsky, Linda Jenness and
Andrew Pulley. For the purpose of discussing the claims, the SWP and
YSA will be treated as a unit, and will be referred to as the SWP.

The SWP sought damages against the United States under the FTCA with
respect to disruption, surreptitious entries, use of informants, and
electronic surveillance. The SWP contended that these activities not
only violated the Constitution, but also constituted common law torts
giving right to recovery under the FTCA.

The Government admitted that these activities were carried out by the
FBI against the SWP, but denied any liability under the FTCA. The Government
contended that the [SWP's] claims are time- barred, that the claims relate
to discretionary functions, and that no substantive right to recovery
has been shown under the applicable tort law.

The four individual plaintiffs seek damages against the United States
under the FTCA. Sell and Starsky claim that FBI activity caused the loss
of their jobs. Jenness and Pulley claim that the Secret Service conducted
improper surveillance at a YSA convention.

There are no damage claims outstanding in this case other than those
described above. However, there are claims for declaratory and injunctive
relief by all plaintiffs against all the officials named as defendants.

Plaintiffs seek a declaration of illegality and a prohibition against:

(1) Investigation of the SWP.

(2) Disruption of the SWP.

(3) Adverse actions against SWP members who are federal employees or
applicants for federal employment.

(4) Adverse actions against SWP members under the immigration and visa
laws.

(5) Maintenance of files on the political activities of the SWP. This
request is made not only under the Qeneral equitable power of the court
but also under the Privacy Act, 5 U.S.C. SS 552a.

Plaintiffs also seek a declaration that it would be unconstitutional
to hold its activities to be in violation of various federal statutes.

The Government objects to all of the reguests for declaratory and injunctive
relief, principally on the ground that there is no showing of present
or threatened future conduct that would warrant such relief. Additional
objections are made to the claim under the Privacy Act."

The Judge's Decisions

"The SWP is entitled to an award of damages under the FTCA against
the United States for the FBI's disruption activities, surreptitious
entries and use of informants. As to these claims, the SWP complied with
the procedural requirements of the FTCA. Also, since these activities
were violations of the constitutional rights of the SWP and lacked legislative
or regu- latory authority, they were not discretionary functions within
the meaning of the FTCA exception. Finally, the SWP has a right to recover
damages under applicable tort law.

The SWP is awarded damages in the amount of $42,500 relating to disruption
activities, $96,500 for the surreptitious entries, and $125,000 for the
use of informants, or a total of $264,000.

The [SWP's] damage claim for electronic surveillance is dismissed for
failure to comply with the procedural requirements of the FTCA.

The damage claims of Sell, Starsky, Jenness and Pulley are dismissed.

With one exception, the requests for declaratory and injunctive relief
are denied because there is no present or threatened activity which warrants
such a remedy.

The exception is that the SWP is entitled to an injunction limiting
the use of certain records illegally obtained by the Government. This
will be granted under the general equitable power of the court and not
under the Privacy Act.

The claims under the Privacy Act are dismissed."

----end Box-----

McCarthy's Shadows

@HEADING1 = Reagan and the Counter-subversion Revival

When the abuses of the COINTELPRO period were exposed in post- Watergate
Congressional hearings and media accounts, some restrictions and reforms
were attempted. President Carter issued an Executive Order mandating
stricter investigative guidelines to protect the right to dissent. In
response, the counter-subversion network shifted its emphasis to the
private sector. As post- Watergate reforms were implemented, the counter-subversion
nativists wailed that America's security was being crippled. committees
were established, headlines screamed, newsletters warned of dire consequences.
Agents moved into the private sector in disgust and wrote memoirs. They
joined the other true believers on the right who had kept the flame of
McCarthyism alive, and the worked together to launch a campaign to rebuild
the public arm of the counter-subversion network. Donner saw this rehabilitation
effort as connected to the Cold War mentality:

=== "The co-star in the script for the revival of domestic counter-subversion
is the influential grouping of foreign policy and military defense
hawks, which ranges from the American Security Council to the Coalition
for a Democratic Majority (CDM), composed of moderate Democats...to
an offshoot, the Committee on the Present Danger, and other cold war
forces. The potential for an alliance even more durable than in the
fifties between nativism and this elitist sector has been strengthened
by the emergence of a sense of the decline of America's role as a world
power. <$FDonner, Age, pp. 453-454.> According to Donner: === "At
a time when established governmental systems for monitoring subversion
have been cut back, these private counter-subversive operations acquire
special importance; they must continue the data collection and storage
practices formerly shared with government agencies, intensify their
propaganda efforts, and-a new mission-promote renewed official involvement
in surveillance and related activities directed against dissent.

Donner's analysis was published at the beginning of the Reagan Administration.
Since then, evidence showed, there has not only been a "renewed
official involvement" in spying on dissent, but the continued development
of a parallel private right- wing intelligence-gathering apparatus which
feeds information to government agencies.

The mood of both the paranoid right-wing and the intelligence community
changed dramatically as the New Right gained more influence and assisted
in the election of Ronald Reagan as President. In writing recommendations
for the Reagan transition team in the New Right Heritage Foundation's "Mandate
for Leadership", Sam Francis recommended that the intelligence agencies
be unshackled. <$FMandate for Leadership: Policy Management in a Conservative
Administration, Charles L. Heatherly, ed. (Washington, D.C., Heritage
Foundation, 1981). See chapter 28: "The Intelligence Community," Samuel
T. Francis, Editor. pp. 903- 953. See especially: list of potential security
threats, p. 935; call for constant surveillance/comprehensive files p.
940; contracting with private organizations, p. 941.>

With words that are essentially the modern transliteration of Kintner,
Francis wrote:

=== "Many of the current restrictions on internal security functions
arose from legitimate but often poorly informed concern for civil liberties
of the citizen and the responsibility of the government. While these
are legitimate concerns, it is axiomatic that individual liberties
are secondary to the requirements of national security and internal
civil order: without the latter, the former can never be secure. Moreover,
much of the current legislation and administrative measures was adopted
with little appreciation of the threat or the Modus Operandi<M> of
extremist, subversive, and violent groups. <$F Mandate, p.
939>=== "In general, the new restrictions place an
emphasis on limiting surveillance to actual or imminent [original
emphasis] violence or illegalities. However, terrorist violence does
not usually develop spontaneously. It typically grows in stages, as
extreme elements become increasingly dissatisfied with their organizations
and come to find them `soft' or `corrupted by the system.' A terrorist
cadre forms, therefore, from the splinters of dissident or extremist
movements. Once it forms, it typically goes underground; its members
establish safehouses, clandestine links, adopt noms de guerre, and
begin storing arms. Once underground, it is virtually impossible to
penetrate systematically. Thus authorities must keep extremist movements
under at least moderate surveillance, become familiar with their public
positions and members as well as their unstated goals, adherents and
fringe elements, and be prepared to escalate surveillance of whatever
groups seem likely to engage in more extreme activities [emphasis
added]. <$F Mandate, pp. 939-940>

Francis also urged that federal intelligence agencies be allowed to
contract with private groups for the collection of vital information.